Department of Education Chafes under Court Restrictions on Racial Preferences

A top official of the Clinton Administration's Department of Education recently sent an open letter to legal officials at the nation's colleges and universities. In it, the Department set forth what is essentially the government's position on affirmative action in college admissions following the issuance in March of the Fifth U.S. Circuit Court's opinion in Hopwood v. Texas, which held that race may not be used as a factor in admissions to the University of Texas Law School, and the subsequent denial of certiorari in that case by the U.S. Supreme Court. It is a letter to be read with a large dose of salt, maybe an entire shaker-full.

The Department officials are right to believe that educating a racially diverse population is vital to America's future. Yet, recognizing that fundamental objective does not justify taking a seriously ill-advised path. Jack Welch, president of General Electric once said while discussing the need for the nation's business leaders to meet the new challenges and opportunities in the global market, "when change on the outside is faster than change on the inside, the end is near." With all due respect to the position of the Department of Education, those words also ring true about the search for diversity on campuses.

The Department of Education's letter looks for loopholes in the court decisions. It suggests that it is still permissible "in certain circumstances" to consider race in making admissions decisions and granting financial aid, and that colleges and universities may do so "to promote diversity of their student body . . . ." The Department comments that the failure of the Supreme Court to review Hopwood means that the high court does not "accept the [F]ifth [C]ircuit's narrow view . . . ." The law is called "unclear" on this point within the Fifth Circuit. And to prove this point, the reader is directed, in part, to what is called a Supreme Court "opinion" in Hopwood, but what more accurately is a statement by Justices Ginsburg and Souter providing an explanation for their votes against the granting of certiorari.

With its words, the Department is misleading the education leaders that it is supposed to serve. In Texas, Mississippi and Louisiana, the law is unequivocal when it comes to racial preferences in college admissions. It is what the Fifth Circuit set forth in Hopwood. There are no legal ifs or buts about it. Racial diversity cannot be considered a legitimate basis for using racial preferences for admissions in at least three of the fifty states--three that are among those ten or twelve with the most egregious histories of past segregation. No matter how noble we believe the purpose of maintaining a racially diverse student body to be, the courts are telling us that race-based strategies cannot be used to reach that goal.

For those university leaders outside the Fifth Circuit a strong signal was recently sent by the Third Circuit in U.S. v. Piscataway, an affirmative action case involving employment in education. The court noted that "[a] non-remedial affirmative action plan, even one with a laudable purpose, cannot pass [constitutional] muster. . . ," even while recognizing that the "differences among us underlie the richness and strength of our nation." In other words, one cannot use racial preferences to achieve racial diversity.

Nevertheless, even though at least three circuit courts seem in harmony on the subject of postsecondary affirmative action, the Department is right to note that we do not yet know what the position of the U.S. Supreme Court may be on the issue. Absent some future conflict among the circuits, we may never find out. But one thing is sure: the answer does not lie in efforts to analyze the Supreme Court's motives in declining to review Hopwood. It is true that by that action, the high court did not "accept" the Fifth Circuit's opinion in Hopwood. It is equally true, as every young law student learns, that the denial of certiorari does not indicate that the Court has rejected Hopwood, either. In plain terms, failure to review means neither acceptance or rejection.

Admittedly, the point is obscured somewhat by Justice Ginsburg's "note" accompanying the denial of certiorari, to which Justice Souter signed on. Few legal scholars would regard that unusual gesture as an "opinion," but even if it were, it does more to confuse the issue than clarify it. A close reading of Justice Ginsburg's words reveals no indication as to what she would find if the high court had taken the case.

So what should counsel for colleges and universities have been told? Heads up (and out of the sand), everyone! The Supreme Court decision in Adarand, and the circuit court opinions in Hopwood (Fifth Circuit opinion invalidating race-based admission at a state university); Podberesky (the Fourth Circuit opinion invalidating race-based scholarships at a state university) and more recently in Piscataway (Third Circuit invalidating race-based layoff of a teacher in public school) are wake up calls that racial preferences are running out of legal room. The time has come for college and university leaders to discover new ways to maintain the robust diversity that we have all come to admire and cherish in post-secondary education.

The failure to do so can be quite costly on a number of fronts, not the least of which is the pocketbook. The prevailing plaintiffs in Podberesky and Piscataway were awarded significant money damages, and the Hopwood court is, as of this writing, considering what remedy to award. Add on top of that the defense costs, and it is easy to see that colleges pay a hefty price for stubbornly defending a losing position. University leaders can choose to ignore the change from outside, and try to preserve the methods of the past. But if they do, it will be at the peril of their institutions, minority youngsters and the nation.

The better advice focuses postsecondary leaders on the opportunity that the court decisions open up for them. Colleges and universities can themselves lead the orderly transition to new paradigms for diversity. They can call for strengthening existing antidiscrimination efforts. And they can develop new race-neutral admissions and financial aid programs that recognize the vagaries of life and seek to identify student ability and potential in new and innovative ways. In the end, they can reinvigorate school reform efforts from inside the system.

With all due respect to the advice from the Department of Education, history is replete with examples of people who failed to recognize and prepare for imminent change. Somewhere at the turn of the 19th century, there was probably a stable owner who scoffed at Henry Ford. Rather than get a car, he'd find different feed so his horse could eat less yet run faster and farther. Standing on the road to change, he probably got run over by a shiny new Ford.

Mr. Williams practices education reform law in Arlington, Texas; serves as a director of the Center for New Black Leadership in Washington, D.C.; and is President of the Galilee Group. The Galilee Group conducts research and public policy advocacy for the 21st Century. He was the Assistant Secretary of Education for Civil Rights for President George Bush.